Terms and Conditions
Data User License – Spatial Data
TERMS AND CONDITIONS FOR DATA LICENSE
Version #1 December 2022
1. Definitions and Interpretation
1.1. Definitions
In this Agreement (including the recitals) unless the context otherwise requires:
Agreement means the Data License Agreement, including these Terms and Conditions, the Order Form and all appendices, exhibits and attachments.
Parties means the Licensor and Licensee collectively.
Consultants means a consultant engaged by the Licensee to provide consulting services to the Licensee under a legally binding consultancy agreement.
Data has the meaning set out in the Order Form and shall include any Updates that may be supplied under clause 2.5.
Effective Date means the date set out in the Order Form.
Force Majeure Event means circumstances beyond the Licensor’s reasonable control and shall include, but not be limited to, compliance with any laws or regulations enacted after the Effective Date, orders, acts, instructions or priority requests of any government, or any department or agency, civil or military authority, acts of God, the Licensee’s acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, epidemics or pandemics or defaults of the Licensor’s suppliers or subcontractors.
GST means a goods and services tax, or a similar value added tax, levied or imposed by the GST Law.
GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended.
Intellectual Property Rights means all intellectual property rights (whether registered or unregistered) that subsist in the Data, in any Updates or in any subset, improvements, developments, enhancements, representation or modification of the Data or the Updates, including but not limited to the following rights:
(a) patents, copyright, designs, trade marks, know-how, trade secrets and any right to have confidential information kept confidential;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a) in any jurisdiction; and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere, whether created or coming into existence before, on or after the Effective Date;
License Fee has the meaning set out in the Order Form.
Licensor’s Bank Account has the meaning set out in the Order Form.
Order Form shall mean the order form, including all amendments, entered into by and between the Licensor and the Licensee and attached to these Terms and Conditions.
Permitted Use has the meaning set out in the Order Form.
Updates shall mean the periodic additions, deletions and changes to the Data.
1.2. Interpretation
In this Agreement unless the context otherwise requires:
(a) headings are for convenience only and do not affect its interpretation and construction;
(b) the singular includes the plural and vice versa; and
(c) words importing a gender include other genders.
2. Licence
2.1. Grant of Licence to use Data
The Licensor grants to the Licensee a non-exclusive, non-transferrable (except for limited rights to sublicence), revocable and limited licence to use the Data throughout the Territory for the Permitted Use, subject to the terms and conditions of this Agreement.
2.2. Limited Right to Sublicence
(a) The Licensee may grant a non-exclusive, non-transferrable, limited sublicense to its Consultants to use the Data directly in conjunction with the Permitted Use.
(b) The grant of a sublicence by the Licensee pursuant to clause 2.2(a) is conditional on the Licensee ensuring that:
(i) the Licensor is informed of the identity of the Consultant; and
(ii) the Consultant enters into a sublicence agreement on the same essential terms, including without limitation that the Consultant may only use the Data for the Permitted Use, as set out in this Agreement, prior to the Data being released to the Consultant.
(c) The Licensee shall at all times remain liable for the acts or omissions of any of its sublicensees and shall indemnify the Licensor for any loss, damage, expense or cost suffered or incurred by the Licensor that arises out of or in connection with a sublicensee’s use of the Data.
(d) The Licensee must ensure that the Consultant either returns all copies of the Data to the Licensee or destroys all copies of the Data in the Consultant’s possession of control on termination or the Constant’s services or termination of the sublicence, whichever is first to occur.
2.3. Permitted Use
The Licensee must only use the Data for the Permitted Use which may include, for clarity, incorporating the Data for use on the Licensee’s website or in printed media, subject to the inclusion of appropriate disclaimers and copyright notices in the form approved by the Licensor.
2.4. Prohibited Use
Without limiting the application of clause 2.3, the Licensee must not, without the Licensor’s written consent (that may be provided or withheld at its discretion):
(a) re-sell or attempt to re-sell the Data to any third party;
(b) commercialise the Data;
(c) subject to clause 2.2, make the Data available to any third party;
(d) include the Data within any software application or derived data product for commercial distribution or sale; or
(e) use the Data in connection with any unauthorised download of files or mapping data services.
2.5. Updates
(a) The Licensor may offer to supply Updates to the Licensee from time to time that the Licensee may only use in accordance the terms and conditions of this Agreement, including without limitation clauses 2.1 to 2.4, and in consideration for the payment of an additional licence fee.
(b) The Parties acknowledge that the Licensor is under no obligation to supply Updates under this Agreement and the Licensee is under no obligation to accept Updates that may be offered to it under clause 2.5(a).
2.6. Delivery
The Licensor will supply the Data and any Updates to the Licensee using the Delivery Method.
3. Payment
(a) In consideration for the grant of the licence under clause 2.1, the Licensee must to pay the License Fee to the Licensor in accordance with this Agreement.
(b) The Licensee must pay the License Fee within 14 days of receipt of the Licensor’s tax invoice by electronic funds transfer to the Licensor’s bank account as nominated by the Licensor.
(c) Failure to pay the Licence Fee within the time set out in clause 3(b), will be considered a breach of this Agreement and the Licensor may at its discretion:
(i) seek and recover from the Licensee late payment interest charged per month, calculated daily, on the outstanding balance; and/or
(ii) by notice in writing terminate this Agreement.
4. Intellectual Property Rights
4.1. Right, Title and Interest
(a) All right, title and interest in the Intellectual Property Rights are and shall remain with the Licensor.
(b) The Licensee acknowledges that it has no right, title to, claim or interest in the Intellectual Property Rights other than the right as licensee of the Data to use the Intellectual Property Rights on the terms of this Agreement.
4.2. Acts by Licensee
The Licensee recognises the Licensors’ interest in the Intellectual Property Rights and will not at any time do any act or thing which will in any way impair the validity of the Intellectual Property Rights or the rights of a Licensor in and to the Intellectual Property Rights.
5. Protection of Intellectual Property Rights
(a) The Licensee must promptly and fully inform the Licensor in writing of:
(i) any infringement or threatened infringement of the Intellectual Property Rights; or
(ii) any unauthorised use of or application of the Intellectual Property Rights;
(iii) any attack or threatened attack on the grant or validity of a right to use the Intellectual Property Rights, which may come to the Licensee’s attention.
(b) Upon receiving a notice under Clause 5(a), the Parties will consult as soon as is reasonably practicable in good faith to determine what reasonable steps should be taken to deal with the threatened or actual infringement, unauthorised use or attack.
(c) If: (i) there is no agreement by the Parties as to the reasonable steps to be taken under Clause 5(b) on or before 7 days after a notice is first given under Clause 5(a); or
(ii) the Licensor does not wish to take action to defend or enforce its rights in relation to the Intellectual Property Rights, the Licensee acknowledges and agrees that it has no standing to take any action and it will not take any action in its own right or in right of that Licensor.
(d) If the Licensor is unable to take action to defend or enforce its rights in relation to the Intellectual Property Rights, the Licensee acknowledges and agrees that it will (if required by the Licensor) take action in its own right provided it has the standing to do so.
6. Warranties and Indemnities
6.1. Warranties
In so far as the Licensor is aware, the Licensor warrants that the granting of the license under clause 2 does not infringe the intellectual property rights of any person.
6.2. Indemnities
The Licensor indemnifies the Licensee from and against any loss, claim, damage, expense or cost relating directly or indirectly to a claim by any person arising in connection with a breach of the warranty provided at clause 6.1.
6.3. Exclusions
(a) The Licensee must determine for itself whether the Data is fit for its required purpose.
(b) Other than as expressly provided for in this Agreement and to the extent permissible under applicable laws, the Licensor does not provide and expressly excludes any warranties, representations or guarantees (whether based on statute, common law or otherwise) in connection with the Data licensed under this Agreement.
6.4. Australian Consumer Law
Nothing in this Agreement is intended to exclude, restrict or modify any right, remedies or guarantees which the Licensee may have under the Competition and Consumer Act 2010 (Cth) (including the ACL) (Act) the effect of which would be to breach the Act or render any part of these terms and conditions void or unenforceable. The Licensor limits its liability to the Licensee for a breach of the Act (including the ACL) to the full extent permitted under the Act (including the ACL), including without limitation to the extent permitted under section 261 of the Act.
7. Liability
(a) To the extent permitted under applicable laws, the Licensor’s liability to the Licensee arising out of or in connection with any claim by the Licensee under or in relation to this Agreement will not exceed the fees paid under this Agreement over the twelve (12) month period prior to the date that the Licensor receives written notice from the Licensee of any such claim.
(b) Subject to applicable laws, the Licensor shall have no liability to the Licensee for or in connection with any indirect, economic, special, incidental or consequential loss or damage, including without limitation any loss of actual or anticipated profit or revenue, business interruption, delay costs, loss of opportunity, loss of income or rent, financing and holding costs, loss by reason of shutdown or increased expense of operation, loss of services or facilities, loss of data, denial of use of any plant, port or facility.
(c) Nothing in this Agreement shall exclude or restrict a Party’s liability under this Agreement for:
(i) death or personal injury; or
(ii) fraud or dishonesty.
8. Indemnity
The Licensee indemnifies the Licensor, its directors, officers, employees and sub-contractors from and against any direct or indirect claims, damages, losses, expenses and costs arising from:
(a) a breach of this Agreement by the Licensee or any of its sublicensees;
(b) use of the Data by the Licensee; or
(c) use of the Data by any sublicensee or other third party who gains access to the Data from the Licensee.
9. Commencement and Termination
9.1. Commencement and term
This Agreement and the licences granted under it come into force with effect on and from the Effective Date and shall remain in full force and effect until this Agreement is lawfully terminated by a Party.
9.2. Termination
(a) The Licensor may by notice in writing immediately terminate this Agreement in accordance with clause 3(c)(ii).
(b) The Licensor may terminate this Agreement by notice in writing to the Licensee if the Licensee is in breach of any term in this Agreement and, if the breach is capable of rectification, the Licensee does not rectify that breach within 7 days from the receipt of a notice from the Licensor requiring the Licensee to rectify the breach.
9.3. Consequences of termination
Upon termination of this Agreement:
(a) all copies of the Data, including modifications and processed results of the Data, must be returned to the Licensor or destroyed;
(b) the Licensee may, subject to complying with all of its obligations under this Agreement, retain one copy of Data (including modifications and processed results of the Data) for the purposes of complying with any requirements under applicable laws (Retained Data). The Retained Data must be securely stored by the Licensee electronic or electromagnetic form and may not be retained in a physical form. The Retained Data may only be retained by the Licensee for the purposes specified in this clause 9.3(b) and may not otherwise be used by the Licensee; and
(c) if requested by the Licensor, the Licensee will provide a statutory declaration to the Licensor confirming compliance with this clause 9.3.
10. Assignment
Neither Party may assign its rights or novate its obligations without the express written consent of the other Party.
11. Confidentiality and Privacy
(a) The Licensee must keep confidential and must not use any confidential information communicated by the Licensee to the Licensee without Licensor’s prior written consent.
(b) The Parties must comply with the Australian Privacy Principles set out in the Privacy Act 1988 (Cth) in connection with any personal information supplied to a Party by the other under this Agreement.
12. Survival
Clauses 2.2(c), 4, 5, 6.2, 9.3 and 11 survive the termination of this Agreement.
13. GST
(a) The Licence Fee excludes GST and any other taxes or duties imposed on or in relation to the supply of the Data, unless otherwise stated in the Order Form.
(b) The Licensee must pay to the Licensor all GST, in addition to any other amounts payable by the Licensee to the Licensor, in respect of any taxable supply under GST Law made by the Licensor to the Licensee under this Agreement.
(c) The Licensee must pay all other taxes and duties, in addition to any GST payable under clause 13(b) any other amounts payable by the Licensee to the Licensor, in respect of the supply of the Data under this Agreement, unless stated otherwise in the Order Form.
(d) The Licensor will issue a tax invoice for any taxable supply to the Licensee, which will enable the Licensee, if permitted by the GST Law, to claim a credit for GST paid by the Licensee.
14. General
14.1. Insurance
The Licensee must take out and maintain for the duration of this Agreement a policy of professional indemnity insurance with a reputable insurer, with a limit of indemnity on any one claim of at least A$10,000,000 (PI Policy). The Licensee must on request from the Licensor provide the Licensor with a copy of its certificate of currency in respect of the PI Policy.
14.2. Inspection Rights
The Licensee must allow the Licensor and any of its employees, contractors or agents reasonable access to the Licensee’s business premises, on the supply of reasonable prior notice, to inspect such of the Licensee’s books and records that the Licensor, acting reasonably, may wish to inspect for the purpose of evaluating the Licensee’s compliance with the terms and conditions of this Agreement.
14.3. Entire Agreement
The terms and conditions of the Agreement comprises the entire agreement between the Parties in relation to the subject matter of this agreement and replace and supersede any previous agreement between the Parties in relation to its subject matter.
14.4. Variation
This Agreement may only be amended by written instrument signed by both of the Parties.
14.5. Governing Law
(a) This Agreement is governed by the laws of the state of New South Wales.
(b) The Parties agree to the non-exclusive jurisdiction of the courts of New South Wales, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
14.6. Force Majeure
If a Force Majeure Event occurs, the Licensor will not be liable in any way however arising under this Agreement and the Licensor may totally or partially suspend the supply of the Data, any part of the Data during any period in which the Licensor may be prevented or hindered from performing its obligations under this Agreement due to that Force Majeure Event and elect to extend, at the Licensor’s discretion, the period for performance of an obligation under this Agreement.
14.7. Notices
Any Notice pertaining to this Agreement is to be sent in writing to the signatories of this Agreement at the email addresses set out in the Order Form.
14.8. No Waiver and Rights
No failure, delay, relation or indulgence on the Licensor’s part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy. The rights and remedies of the Licensor under this Agreement shall not be exclusive and are in addition to any other rights and remedies available to the Licensor.
14.9. Counterparts and Electronic Execution
(a) This Agreement may be executed in any number of counterparts each of which, when executed, is deemed to be an original and the counterparts will constitute one and the same instrument.
(b) Delivery of an executed counterpart of a signature page to this Agreement by electronic exchange of .pdf files is effective as delivery of a mutually executed counterpart to this Agreement.
